Ius et Praxis
On-line version ISSN 0718-0012
TARUFFO, Michele. Poderes probatorios de las partes y del juez en Europa. Ius et Praxis [online]. 2006, vol.12, n.2, pp. 95-122. ISSN 0718-0012. doi: 10.4067/S0718-00122006000200005.
The article treats different political and ideological and the meta judicial postulates which are against the probationary power of the judge in process. For the author, three are the existing systems in the material of the probationary activity of the judge in Europe. All, more or less, admit the probationary activity of office by the judge. The conclusion is lapidary: the position of the liberal critics regarding this issue is neither coherent nor precise. They refer to the liberalism of the 19th Century including the valid conceptions of typical law processes concerning the proprietor's individualism. General considerations of this genre are probably sufficient to demonstrate that the examples ("instructional powers of the judge = authoritarian regime" and "passive judge = liberal regime") are vague and generic, reduced to debateable slogans which lack scientific value. Consequently, this results in a sophism; the active, authoritarian judge versus the passive, liberal judge. Similarly, numerous democratic systems exist where the judge can rule, with amplified instructional powers, as it occurs for example in France, Switzerland and in Germany. Substantially each decision is not "good" simply because it puts a final end to the conflict; the decision is only "good" if it puts a final end to the conflict being filed in legal and rational criteria, among those which assume particular truthful importance of the verification of facts. If the judge, capable of correctly and rationally carrying out his/her powers, is considered "good" there is no reason to fear that he/she will become biased and incapable of evaluating proof, for the single fact of having disputed or suggested his/her acquisition. Only if a judge is thought of as incapable and psychologically weak should the loss of his/her own impartiality be feared
Keywords : Proof of office; compared civil process; ideologies.